State v. Williamson , 2019 Ohio 1985 ( 2019 )

[Cite as State v. Williamson, 2019-Ohio-1985.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 107117, 107162
and 107916
v. :
MICHAEL WILLIAMSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 23, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-01-406972-ZA
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecutor, and
Diane Smilanick and Mary M. Frey, Assistant Prosecuting
Attorneys, for appellee.
Michael Williamson, pro se.
PATRICIA ANN BLACKMON, P.J.:
Michael Williamson (“Williamson”) appeals from the denial of his
motion for leave to file a delayed motion for a new trial and petition for
postconviction relief. He assigns the following errors for our review:
I. The trial court abused its discretion when denying the motions
for leave to file a motion for a new trial and motion for a new
trial.
II. The trial court abused its discretion when denying Williamson’s
motions for postconviction relief.
III. The fair trial and due process provisions of both constitutions
were violated [through the withholding of exculpatory evidence].
IV. The fair trial, right to counsel and due process provisions of [the
Ohio Constitution and United States Constitution] were violated
[through a conspiracy to convict an innocent person].
V. The fair trial and due process provisions of both constitutions
were violated [by prosecutorial misconduct in bringing grand
jury proceedings against defense witness Mark Neiswonger].
VI. The fair trial and due process provisions of [the Ohio
Constitution and United States Constitution] were violated
[because Williamson was not permitted to present] the entire
continuum of evidence related to the Neiswonger confession and
[the grand jury information against Neiswonger].
Having reviewed the record and pertinent law, we affirm the decision
of the trial court. The apposite facts follow.
Williamson was charged with raping his seven-year-old stepdaughter
over an extended period of time. The matter proceeded to trial in December 2001.
The evidence presented at trial included the following:
[T]he victim testified that she was seven years old at the time of the
rapes. She testified that her stepfather, the defendant, touched her
breasts and private areas, and forced her to perform oral sex over forty
times. She stated that he played dirty movies for her and her two
brothers. * * *
Sally Weindorf, a social worker with Children and Family Services, who
testified that the victim told her what happened on April 20, 2001.
***
The victim allowed Dr. Bar-Shain to perform an internal physical
examination and described the sexual assaults in detail. [Dr. Bar-
Shain] opined that sexual abuse probably occurred.
***
The defense presented six witnesses: Lois Fears, Michael Tracinski,
Teresa Williamson, Dorothy Gudat, Rachel Williamson and Michael
Williamson, himself. Ms. Fears, a friend, testified that she drove the
victim to and from school and watched the victim and her brothers after
school while the parents worked. She testified that she never saw or
heard anything during that time.
Next, Michael Tracinski, the victim’s natural father, testified. He
testified that Roxie Blakley, the victim’s grandmother, had accused him
of sexual wrongdoing with the victim when she was two years old, but
that he had been cleared of all charges.
Next, Teresa Williamson, the victim’s mother, testified. She testified
that her daughter had once been molested by a prior boyfriend’s
friend. She testified that her mother had made accusations of possible
molestation against Tracinski, her ex-husband, and a baby-sitter, but
that neither turned out to be true.
***
Next, Dorothy Gudat testified. She testified that she is the
grandmother of one of the victim’s friends and that she had no
knowledge if her granddaughter had ever spent the night at the victim’s
home.
Next, Rachel Williamson, testified. She is the sister of the defendant.
She testified that she babysat for the victim and her brothers while their
parents were at work. She testified that she never saw or heard
defendant do anything inappropriate to the victim during that time.
She also stated that two days before the defendant was arrested for
rape, she had asked the victim if the defendant had ever touched her
and that she had said no.
Finally, defendant testified on his own behalf. He testified that he did
not force the victim to perform oral sex on him and denied having
sexual contact with her. He also testified that he never watched dirty
movies with the victim and that he did not smoke marijuana in front of
the kids.
On December 21, 2001, the jury found defendant guilty of twelve counts
of rape as charged in the indictment.
See State v. Williamson, 8th Dist. Cuyahoga No. 80982, 2002-Ohio-6503, ¶ 4-15
(“Williamson I”).
Williamson filed a direct appeal in which he assigned two errors for
our review. As is relevant herein, Williamson asserted that his trial counsel was
ineffective because he “grossly mishandled an exculpatory witness [Neiswonger].”
Id. at ¶ 33.
In rejecting Williamson’s claims, this court observed that
Neiswonger appeared on the third day of trial, and that “[d]uring trial, the victim
denied that Neiswonger touched her inappropriately or molested her.” Id. at ¶ 34-
35, fns. 1 and 2. This court also noted that Neiswonger never made a statement prior
to trial, and in any event, any molestation by Neiswonger is not a defense for
Williamson. Id.
In 2002, Williamson filed a pro se petition to vacate or set aside his
conviction and a motion for a new trial. The trial court denied both the petition and
the motion. Williamson subsequently challenged his sentence and, in 2014, this
court ordered the trial court to resentence Williamson in order to properly advise
him of postrelease control. State v. Williamson, 8th Dist. Cuyahoga Nos. 100563
and 101115, 2014-Ohio-3909, ¶ 20, 23 (“Williamson II”).
In November 2015, Williamson filed a second petition for
postconviction relief. It was denied four months later, and this court affirmed. State
v. Williamson, 8th Dist. Cuyahoga No. 104294, 2016-Ohio-7053 (“Williamson III”).
In 2017, Williamson filed an application for DNA testing of a cup and
part of the flooring of the home. The trial court noted that no such physical evidence
was presented at his trial; the only physical evidence collected and tested by the state
was the victim’s bedding, which tested negative for semen and blood. The trial court
also concluded that results from the DNA testing would not be outcome
determinative because the presence of another person’s DNA on the flooring or cup
would not have exonerated Williamson. The court also noted that the victim alleged
that Williamson raped her over 40 times; he was convicted of 12 of those incidents,
and the cup and flooring related to only one incident. This court affirmed, stating:
[N]o parent sample existed on which a DNA test could be performed
and the court denied Williamson’s application on that finding,
pursuant to R.C. 2953.74(C)(1).
Further, the results of the requested DNA material would not be
“outcome determinative.” R.C. 2953.74(C)(4) provides that a trial
court may only accept the application if the exclusion result will be
“outcome determinative.” As the trial court found, even if DNA from
another person was found, Williamson would not be completely
exonerated because the victim testified he raped her over 40 times.
Williamson’s identity was not at issue; he denied raping the victim and
was convicted of 12 counts of rape.
State v. Williamson, 8th Dist. Cuyahoga No. 106480, 2018-Ohio-2226, ¶ 10-11
(“Williamson IV”).
In April 2018, Williamson filed a petition for postconviction relief and
motion for leave to file a motion for a new trial, maintaining that he is actually
innocent of the offenses. Williamson averred that Neiswonger “admitted” that “he
alone” engaged in sex with the victim. However, according to Williamson’s affidavit,
Neiswonger was “intimidated” from testifying for the defense after the state
attempted to charge him with obstruction of justice, but a “no bill” was later issued.
Williamson also averred that the exculpatory evidence related to Neiswonger was
withheld from him.
On October 22, 2018, the trial court denied the petition for
postconviction relief and motion for a new trial, stating:
[Williamson’s] 4/9/18 motion for leave to file delayed motion for new
trial is based upon [Williamson’s] claim of actual innocence and the
inability to proffer confession of homeless man named Mark
Neiswonger. [Williamson] has attached what purports to be
[Williamson’s own] affidavit in support of his claims.
Review of [Williamson’s] original appeal in court of appeals case no.
80982 issued 12/9/02 affirming [Williamson’s] conviction reveals
discussion of the same individual and issues raised in [Williamson’s]
current Motion for leave to file delayed appeal. (See vol. 537, p882). It
is evident that [Williamson] knew of Neiswonger and his purported
role in the case at the time of trial. Any argument pertaining to
Neiswonger could not be described as new evidence. (See State v.
Blalock, [8th Dist. Cuyahoga No. 104773,] 2017-ohio-2658).
Accordingly, [Williamson’s] 4/9/18 pro se motion for leave to file
delayed motion for new trial is denied.
[Williamson’s] 4/9/18 pro se motion for new trial is denied as moot.
[Williamson’s] 4/9/18 pro se petition for postconviction relief is denied
without hearing. The petition is untimely, has been previously denied,
and all arguments contained therein are res judicata.
In his assigned errors, Williamson asserts that the trial court erred in
denying his motion for leave to file a motion for a new trial and motion for a new
trial.
Motion for Leave to File Motion for a New Trial
The grant or denial of a motion for a new trial on the grounds of newly
discovered evidence is within the discretion of the trial judge and this ruling will not
be disturbed on appeal absent an abuse of discretion. State v. Hill, 64 Ohio St. 3d
313, 333, 595 N.E.2d 884 (1992); State v. Schiebel, 55 Ohio St. 3d 71, 76, 564 N.E.2d
54 (1990). An abuse of discretion is more than an error of law or judgment; it
implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
New trials are governed by Crim.R. 33. Crim.R. 33(A)(6) provides
that a motion for a new trial on the ground of newly discovered evidence may be
granted only if that evidence:
(1) discloses a strong probability that it will change the result if a new
trial is granted, (2) has been discovered since the trial, (3) is such as
could not in the exercise of due diligence have been discovered before
the trial, (4) is material to the issues, (5) is not merely cumulative to
former evidence, and (6) does not merely impeach or contradict the
former evidence.
State v. Cannon, 8th Dist. Cuyahoga No. 103298, 2016-Ohio-3173, ¶ 12, citing State
v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.
Under Crim.R. 33(B), new trial motions that are based upon newly
discovered evidence must be filed within 120 days after the verdict was rendered,
unless it appears, by clear and convincing proof, that the movant was unavoidably
prevented from discovering the new evidence. A defendant is “unavoidably
prevented” from filing a timely motion for new trial if the defendant had no
knowledge of the existence of the ground supporting the motion for new trial and
could not have learned of the existence of that ground within the time prescribed for
filing the motion for new trial in the exercise of reasonable diligence. State v.
Walden, 19 Ohio App. 3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984). Res
judicata bars all subsequent new trial motions that are based on claims that were
brought or could have been brought on direct appeal or in prior motions filed under
Crim.R. 33. State v. Bridges, 8th Dist. Cuyahoga Nos. 103634 and 104506, 2016-
Ohio-7298, ¶ 25.
A claim of actual innocence based on newly discovered evidence may
be raised in a Civ.R. 33 motion for a new trial. State v. Byrd, 145 Ohio App. 3d 318,
331, 762 N.E.2d 1043 (1st Dist.2001). Such motions must demonstrate the strong
probability that newly discovered evidence would have led to a verdict of not guilty.
State v. Blalock, 8th Dist. Cuyahoga No. 104773, 2017-Ohio-2658, ¶ 45, citing
Cannon at ¶ 12, and State v. Jalowiec, 2015-Ohio-5042, 52 N.E.3d 244, ¶ 30 (9th
Dist.).
The evidence submitted must not be merely cumulative to the
evidence presented at trial. State v. Hale, 8th Dist. Cuyahoga No. 103654, 2016-
Ohio-5837, ¶ 9; State v. Powell, 90 Ohio App. 3d 260, 264, 629 N.E.2d 13 (1st
Dist.1993); State v. Combs, 100 Ohio App. 3d 90, 652 N.E.2d 205 (1st Dist.1994).
In this matter, Williamson’s claims regarding Neiswonger do not
constitute newly discovered evidence and do not entitle him to a new trial. The
record demonstrates that during trial, Williamson proffered that “Neiswonger was
going to testify that he also molested the victim.” The court determined that this
evidence was simply to contradict the victim’s testimony at trial that Neiswonger did
not molest her. Williamson I, 2002-Ohio-6503, at ¶ 34-35, fns. 1 and 2. This court
agreed that the evidence was not exculpatory and was not a defense. Id. Therefore,
these same assertions reframed within Williamson’s affidavit in support of his
motion for a new trial constitute neither “newly discovered evidence” nor
exculpatory evidence and do not demonstrate Williamson’s actual innocence.
Accordingly, the trial court did not err in denying Williamson’s
motion for leave to file a motion for a new trial. The first assigned error is without
merit.
Postconviction Relief
In the remaining assigned errors, Williamson argues that the trial
court erred in denying his petition for postconviction relief. He maintains that
Neiswonger “confessed” that “he alone” raped the victim, and this exculpatory
evidence was withheld from him. He also asserts that the state brought grand jury
proceedings that were later “no billed,” in order to intimidate Neiswonger from
testifying for the defense at trial.
Under R.C. 2953.21(A), a person convicted of a criminal offense who
claims that there was such a denial or infringement of the person’s rights as to
render the judgment void or voidable under the Ohio Constitution or the
Constitution of the United States may file a petition in the court that imposed the
sentence for the offense, stating the grounds for relief relied upon, and asking the
court to vacate or set aside the judgment or sentence or to grant other appropriate
relief.
A petition for postconviction relief may be dismissed without an
evidentiary hearing when the claims raised are barred by the doctrine of res judicata.
State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104 (1967), paragraphs seven, eight
and nine of the syllabus.
In this matter, the record demonstrates that this is Williamson’s third
petition for postconviction relief. Moreover, the same claims about Neiswonger
were raised in Williamson’s direct appeal when he asserted:
[Defense counsel was ineffective] by failing to offer his testimony,
failing to adequately proffer that his testimony would have been, that
he coached the alleged victim’s accusations, and failing to file a motion
for new trial based upon this exculpatory witness’s more detailed post-
verdict statements.
Williamson I, 2002-Ohio-6503, ¶ 32. In rejecting Williamson’s claims, this court
observed that Neiswonger appeared on the third day of trial, and that “[d]uring trial,
the victim denied that Neiswonger touched her inappropriately or molested her.”
Id. at ¶ 34. This court also stated:
Prior to the start of trial, defense counsel produced Neiswonger, a
handicapped man that paid rent and lived within the defendant’s
household, as a witness for the defense. Defense counsel proffered that
Neiswonger was going to testify that he also molested the victim. (Tr.
737-49). The trial court determined that Neiswonger’s testimony was
being introduced for the purpose of contradicting the victim’s
testimony, and was not exculpatory in nature. (Tr. 748, 864). We
agree. A witness may not be impeached by evidence that merely
contradicts her testimony on collateral matters. State v. Boggs (1992),
63 Ohio St. 3d 418, 422, 588 N.E.2d 813. Since no defense to the charge
of rape against the defendant would be implicated by Neiswonger’s
testimony that he also molested the victim, that issue was irrelevant to
the matter. Accordingly, since the evidence was not properly
admissible, counsel’s failure to call Neiswonger as a witness was not
prejudicial. Thus, defendant was not rendered ineffective assistance of
counsel. * * *
Defendant also claims that at the time of sentencing, defense counsel
discovered that Neiswonger was going to testify that he coached the
victim regarding her accusations against defendant. The record does
not support this argument. Indeed, the transcript shows that
Neiswonger was present at the sentencing and declined to make any
statement. (Tr. 857-859).
Id. at ¶ 34-35.
In accordance with the foregoing, Williamson cannot show that he
was unavoidably prevented from discovering the facts on which the petition is based
and cannot show that but for this purported constitutional error, no reasonable
factfinder would have found him guilty of raping the victim. Accordingly, the trial
court properly denied the petition under R.C. 2953.23(A).
Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____________________________________
PATRICIA ANN BLACKMON, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
EILEEN A. GALLAGHER, J., CONCUR